Comcast, FCC Wrong When Claiming Court Didn't Set Up New Section 616 Evidence Rules, Tennis Channel Says

The FCC and Comcast are wrong when they claim a 2013 U.S. Court of Appeals for the D.C. Circuit ruling didn't set up a new evidentiary framework for deciding program carriage violations, Tennis Channel said in a proof reply brief in its petition seeking to force the agency to reopen a complaint against the cable operator. FCC arguments that Tennis Channel was supposed to anticipate the D.C. Circuit would put in place new evidentiary requirements and produce evidence in advance satisfying those hypothetical requirements "cannot be right in a case like this one, where an appellate court altered the standard of proof after the case was tried," Tennis Channel said Thursday. "Because the explanation in the FCC’s Order entirely fails to grapple with the relevant interests at stake, its refusal to reopen the record must be vacated."

The FCC originally agreed with Tennis Channel's 2010 carriage complaint against Comcast. The decision was subsequently vacated by the D.C. Circuit on appeal. After Tennis Channel re-petitioned the FCC, the agency in January issued an order denying both the original complaint and the re-petition (see 1501280059). Tennis Channel in response petitioned to vacate that order and remand the case.

Nothing in that 2013 D.C. Circuit ruling stops the FCC from looking at the relevant evidence under the standards set up by that ruling, Tennis Channel said now. The new standards require it to prove that being treated equally in Comcast's lineup would have been good for the cable company's distribution business, even though the evidence in the case "showed unequivocally that denying Tennis Channel equal treatment was good for Comcast's programming business," Tennis Channel said. That kind of evidentiary standard isn't found in past rules and decisions regarding Section 616 of the Communications Act, regarding carriage discrimination -- including the FCC administrative law judge's decision on the original Tennis Channel complaint or the FCC 2012 order, it said. While Comcast and the FCC have based their counterarguments on selective statements taken out of context from the D.C. Circuit decision, the relevant passage makes it clear the court was only upholding the legal validity of FCC standards for deciding carriage claims -- standards Comcast had challenged -- but not endorsing what the agency said would be needed to prevail under that standard, Tennis Channel said. "As much as Comcast would prefer to 'move on' ... this court should require the Commission to consider Tennis Channel's claim under the evidentiary framework" set up in that decision, the network said.

The FCC didn't comment Friday. In a brief filed last month, the agency said Tennis Channel hasn't demonstrated that there's any new evidence to justify reopening the discrimination complaint against Comcast, and hasn't explained why it didn't present any such evidence previously (see 1510220019). It also said it closely followed the appellate court's decision in its January decision and that D.C. Circuit decision didn't suggest it expected the FCC to revisit the matter.

Comcast also didn't comment Friday. In a brief earlier this month, it said the D.C. Circuit's 2013 decision clearly indicated there was insufficient evidence in the record to support the discrimination claim, and that it did not point to "a do-over before the agency" as the ruling didn't contain any language about remanding the case the FCC (see 1511050027).